“The most dangerous libel decision in decades”

Last Friday, the First Circuit Court of Appeals upended the generally accepted notion that U.S. defamation law does not impose [defamation] liability for truthful statements. In Noonan v. Staples, a three-judge panel of the federal appeals court in Boston held that Alan Noonan, a former Staples employee, may hold the company liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan’s termination, so long as he can prove that the email was sent with “actual malevolent intent or ill will.”

Huh? Here’s part of Robert’s precis:

As the 1st Circuit itself acknowledged, “everything said in the e-mail was true.” But it said Noonan could still have a claim under the 1902 statute if he could show that the e-mail was sent “with actual malice.” The Supreme Court’s decision in New York Times v. Sullivan defined actual malice as requiring knowledge that a statement was false or reckless disregard for its truth or falsity. The first time the 1st Circuit decided this case, it applied that standard to dismiss Noonan’s appeal. This time, it leapfrogged back in time over 40 years of Supreme Court precedent to apply a 1903 SJC ruling that defined actual malice as “malicious intention,” which Torruella recasts as “ill will.”

10 thoughts on ““The most dangerous libel decision in decades””

Defamation seems like an odd tort to bring in this case. Wouldn’t an invasion of privacy claim of some sort be more appropriate? Even if the likelihood of success would be low on one of those torts it seems more apropos. (I’m totally being off the cuff here, as I barely remember anything about invasion of privacy torts).

Let me preface with I am not a lawyer but I have significant experience (having been in business for myself my entire adult life) in hiring and firing people. I don’t see how defamation would enter into it at all. Disclosing the reason(s) behind an employee termination, as all HR personnel and middling middle managers are taught, is a no-no. That, if anything, would have been the issue. “If anything” as the premise of that decision was to disallow a practice (telling the truth) that might hamper the former employee’s ability to obtain future work. Was the fired guy planning to re-apply to the same company??? Then he has a brilliant case!

Hmm. I read the decision somewhat differently. The court recognizes the silly Massachusetts rule that malicious statements can be libelous even if true. It also says that Staples only argued for the first time upon rehearing that the rule is always unconstitutional (as opposed to only unconstitutional when applied to speech on matters of public interest, as MA courts have already found). It therefore declines to decide whether it is always unconstitutional. See footnote 7:

“In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not
developed now and was not raised in the initial briefing.
Accordingly, we do not consider it at this time.”

I think that’s an odd exercise of discretion in this case — the proposition that the rule is unconstitutional seems rather self-evident to me. But at the very least, it leaves the door wide open to make the argument that the rule is always unconstitutional in any future case.

I agree with Ron and others that it seems strange to talk about “truthful defamation,” and that this tort action would look prettier with a different label on it. But the First Amendment definitely does not protect all truthful speech against tort liability. Copyright infringement, invasion of right of publicity, intentional infliction of emotional distress, espionage, leaking information that could lead to insider trading–all of these are categories of truthful speech that are not generally First Amendment protected and that frequently give rise to tort (and sometimes criminal) liability. Although I haven’t thought hard about it, on first blush it seems to me that the Massachusetts Supreme Court’s First Amendment distinction between speech on matters of public interest and speech of purely private concern is precisely consistent with the rule set forth by the US Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985) and more recently reaffirmed in Bartnicki v Vopper, 532 U.S. 514 (2001), especially in the concurring opinion of Justice Breyer.

About the Title: The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

As for me, I'm Ron Coleman, an AV-rated partner at Archer - Attorneys at Law,** a firm of about 180 attorneys with offices in NJ, NY, PA and DE (but active nationwide). I've been called an "IP maven" but I'm really a commercial litigator with a special interest in copyright and trademark infringement claims involving the Internet, including advising clients how to avoid them or - if necessary - how to make the other guy wish he had.

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